Misir v. Ontario (Health and Long-Term Care)

Misir v. Ontario (Health and Long-Term Care) Collection Decisions of the Court of Appeal Date 2019-01-23 Neutral citation 2019 ONCA 36 Docket numbers C65374 Judges Brown, David M.; Paciocco, David M.; Zarnett, Benjamin Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Misir v. Ontario (Health and Long-Term Care), 2019 ONCA 36 DATE: 20190123 DOCKET: C65374 Brown, Paciocco and Zarnett JJ.A. BETWEEN Marc Misir and Randolph Misir Applicants (Appellants) and Her Majesty the Queen in right of Ontario as represented by the Ministry of Health and Long-Term Care Respondent (Respondent) Randolph Misir, acting in person, for the appellants Courtney Harris and Andrea Bolieiro, for the respondent Heard: January 18, 2019 On appeal from the order of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated April 9, 2018. REASONS FOR DECISION [1] The appellant Randolph Misir is the father of the appellant Marc Misir. They are both Canadian citizens. [2] On March 13, 2008, the Ministry of Health and Long-Term Care (the “Ministry”) sent letters to the appellants advising that their Ontario Health Insurance Plan (“OHIP”) coverage was under review, and requesting documents to verify, among other things, their Ontario residency, which is a requirement for OHIP coverage even if one is a Canadian citizen. When the appellants did not respond, their OHIP coverage was cancelled. [3] In 2013, the appellants took certain steps toward reinstating their OHIP coverage. However, they failed to satisfy the Ministry’s OHIP Eligibility Review Committee that they met the Ontario residency requirements for OHIP coverage, and their coverage remained cancelled. [4] In 2014, the appellants appealed to the Health Services Appeal and Review Board (the “HSARB”) from the OHIP Eligibility Review Committee’s decision and sought to have their OHIP coverage reinstated. On February 18, 2016, the HSARB concluded that the evidence put before it failed to meet the appellants’ onus to show that they met the Ontario physical presence and residency requirements for OHIP eligibility, and the appeal was dismissed. The appellants did not appeal that decision further. [5] The appellants instead launched an application in the Superior Court, seeking a declaration that s. 14 of the Health Insurance Act, R.S.O. 1990, c. H.6 (“HIA”) was “constitutionally inapplicable in the instant case” as it breaches the appellants’ rights under s. 7 of the Canadian Charter of Rights and Freedoms. Section 14 of the HIA prevents persons who are Ontario residents eligible for OHIP coverage from buying private health insurance for services OHIP insures. The appellants alleged that they had tried to buy, unsuccessfully, private health insurance, and claimed insurers refused to sell it to them because they were Canadian citizens, and that somehow s. 14 of the HIA was responsible for that occurring. [6] The application judge dismissed the application. She held that the HSARB decision had determined the appellants were not residents of Ontario in the sense necessary to be entitled to OHIP coverage and that decision could not be collaterally attacked. Accordingly s. 14 of the HIA did not prevent the appellants from doing anything as it does not apply to them. The declaration they sought, that s. 14 infringes the Charter, should not, according to the application judge, be granted as the section does not prevent the appellants from buying private health insurance. Nor, she held, was there evidence that s. 14 is contrary to the principles of fundamental justice. [7] Before us, the appellants argued that the point is not that s. 14 of the HIA, when properly interpreted, does not apply to them. Nor is it germane, according to the appellants, that there is nothing constitutionally wrong with s. 14 to the extent that it prevents persons eligible for OHIP coverage from purchasing private health insurance. Instead, they say that the problem is that insurers whom they have approached refuse to sell them insurance citing s. 14 as though they are eligible for OHIP coverage, while the Ministry takes the position, improperly in their view, that they are ineligible, meaning they have no coverage at all and cannot obtain any. [8] Although we sympathize with the appellants, we are not persuaded that there is any reason to interfere with the application judge’s decision. In order to be entitled to the type of relief they claim, the appellants would, at the very least, have to show that it is s. 14 of the HIA, and not an alleged misinterpretation of it by persons not parties to this proceeding, that is affecting them. We agree with the application judge that this has not been shown. If the appellants are being denied private health insurance notwithstanding their ineligibility for OHIP coverage as determined by the HSARB, their complaint is not against the Ministry; nor does it arise from or implicate s. 14 of the HIA. Nor do the circumstances show that s. 14 deprives the appellants of anything contrary to the principles of fundamental justice. [9] The appellants’ case is not changed by their assertions that the non-residency determinations that have been made that have resulted in their OHIP coverage being cancelled were improperly made. First, those determinations cannot be collaterally attacked in this proceeding. Second, as the respondent has pointed out, should the appellants be able to provide confirmation that they meet the OHIP eligibility requirements, they may request a new review by the OHIP Eligibility Review Committee. They have not done so, but this does not mean they are without a remedy. [10] The application judge encouraged the respondent to provide the appellants with a letter confirming they are not eligible for OHIP coverage and that the HIA does not prohibit them from purchasing private health insurance, to assist them in dealing with private health insurers. We were informed during the hearing that a letter dated April 9, 2018 was provided to the appellants, and it is appended as Schedule A to these reasons. Counsel to the respondent confirmed the letter applies to both appellants, and in our view it can be treated as what the appellants have requested, namely, as a release by the Ministry of any complaint that the granting of private health insurance to the appellants while they remain ineligible for OHIP coverage would infringe s. 14 of the HIA. [11] Accordingly, the appeal is dismissed. This is not a case for costs. “David M. Brown J.A.” “David M. Paciocco J.A.” “B. Zarnett J.A.” SCHEDULE A